71 Op. Att'y Gen. 9 (1982)
 
71 OAG 9  10  11  12

OPINION NO. OAG 4-82,

Wisconsin Attorney General Opinions

13 January 1982

Public Records,
Vocational And Adult Education;
Words And Phrases;

A local vocational, technical and adult
education district is a "school district"
within the meaning of the Wisconsin Public
Records Law. Section 19.21, Stats.

Except for any pupil records under Section
118.125, Stats., a VTAE district must
preserve records at least seven
years before destruction.

Section 19.21(7), Stats.

A VTAE district may not maintain
records on microfilm.

ROBERT P. SORENSON, PH.D., State Director
Board of Vocational, Technical and Adult
Education

You ask three questions concerning the
applicability of the Wisconsin Public Records
Law, Section 19.21, Stats., to local
vocational, technical and adult education
districts (VTAE districts).

Your questions are prompted by the tremendous
volume of records maintained by the VTAE
districts and the costs of storage, filing
and record retrieval.

 
71 OAG 9  10  11  12

 Your first question is whether a VTAE
district is a "school district" within
the meaning of the Wisconsin Public
Records Law, Section 19.21, Stats.

In my opinion, the answer is yes.

Section 19.21(1), Stats., provides:

     Each and every officer of the state, or
     of any county, town, city, village,
     school district, or other municipality
     or district, is the legal custodian
     of and shall safely keep and preserve
     all property and things received from
     his predecessor or other persons and
     required by law to be filed, deposited,
     or kept in his office, or which are in
     the lawful possession or control of
     himself or his deputies, or to the
     possession or control of which he or
     they may be lawfully entitled, as such
     officers.

The Wisconsin Public Records Law, created by
Chapter 178, Laws of 1917, reflects public
policy which favors the right of inspection
of public documents and records.
Newspapers, Inc. v. Breier,
89 Wis.2d 417, 426-27,
279 N.W.2d 179 (1979).

It should be liberally construed to
effectuate that public policy.

See Section 19.81(4), Stats.

Thus, although Section 38.01(2) and (4),
Stats., distinguish "VTAE districts" and
"school districts" for purposes of Chapter
38, Stats., I believe that the term "school
district" as used in Section 19.21(1),
Stats., should be interpreted in its
generic sense to include VTAE districts.

The term "school district" has been given
various meanings depending upon the
context in which it is used.

Green Bay Met. S. Dist. v. Voc., T. & A. Bd.,
58 Wis.2d 628, 637,
207 N.W.2d 623 (1973).

In the Green Bay case, 58 Wis.2d at 638, the
court concluded that a VTAE district was

       "a school district created
        under the laws of this state"

and was not a "municipality" for
certain tax purposes.

See also

Binder v. Madison,
72 Wis.2d 613, 619-20,
241 N.W.2d 613 (1976);

Egan v. Wisconsin State Board
of Vocational, T. & A. Ed.,
332 F.Supp. 964, 966 (E.D. Wis. 1971);

and

68 Op. Att'y Gen. 148, 149 (1979)

where I stated:

     The term "any . . . school district" in
     the context of Section 66.30, Stats.,
     clearly includes vocational, technical
     and adult education school districts.

     The Legislature initially provided for
     local vocational school boards in
     Chapter 616, Laws of 1911.

     Moreover, the Wisconsin Supreme
     Court has consistently referred to
     elementary and secondary school law
     in interpreting statutes implementing
     the vocational system.

     See, e.g.,
     West Milwaukee v. Area Board
     of Vocational, Technical and
     Adult Education,
     51 Wis.2d 356,
     187 N.W.2d 387 (1971),

     and

     Wood County v. Board of Vocational,
     Technical and Adult Education,
     60 Wis.2d 606,
     211 N.W.2d 617 (1973).

 
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This rationale is equally applicable to the
present question and it is thus my opinion
that a VTAE district is a "school district"
within the meaning of Section 19.21(1)
and 19.21(7), Stats.

See also

West Milwaukee v. Area Bd.
Vocational, T. & A. Ed.,
51 Wis.2d 356, 373,
187 N.W.2d 387 (1971).

In 61 Op. Att'y Gen. 297 (1972), my
predecessor concluded that a list of
students awaiting a particular program in
a VTAE district school was a public record
within the meaning of the Wisconsin Public
Records Law.

Thus, it is my opinion that a VTAE district
is a "school district" within the meaning
of Section 19.21(1), Stats.

Even if a VTAE district were not a "school
district" within the meaning of the Wisconsin
Public Records Law, it nonetheless would be
subject to the law because it would come
within the phrase "or other . . district"
contained in Section 19.21(1) Stats.

However, whether a VTAE district is a "school
district" or only a "district" under the
Wisconsin Public Records Law is crucial to
resolving your second question, namely, how
long must VTAE district records be preserved?

If a VTAE district is a "school district"
within the meaning of the law, the answer to
your second question is found in Section
19.21(7), Stats., which provides: "Any school
district . . . may provide for the
destruction of obsolete school records. . .
The period of time a school district record
shall be kept before destruction shall
be not less than 7 years.

This section shall not apply to
pupil records under s. 118.125."

If on the other hand a VTAE district is not
a "school district," it is without authority
to destroy records which fall within Section
19.21(1), Stats., and which are not pupil
records under Section 118.125, Stats.

This is the conclusion reached by my
predecessor in 63 Op. Att'y Gen. 272 (1974)
with respect to the records of school
districts.

That conclusion led to the creation of
Section 19.21(7), Stats., which specifically
addresses destruction of obsolete school
records.

See Chapter 202, Laws of 1977.

Since I have concluded that a VTAE district
is a "school district" within the meaning of
the Wisconsin Public Records Law, it is my
opinion that except for any pupil records
under Section 118.125, Stats., a VTAE
district must preserve records

 
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Section 19.21(7), Stats.

Your third question is whether a VTAE
district may maintain public records
on microfilm.

In my opinion the answer is no.

Replacement of original public records with
microfilm or by other photographic means
requires specific approval by the
Legislature.

Photographically reproduced public records
are not original records unless so
provided by the Legislature.

Sections 19.21(5)(c) and 59.715-59.717,
Stats., provide for the photographic
reproduction of public records
of certain local units of government.

Section 16.61, Stats., covers retention of
state records and provides standards
whereby photographically reproduced
records may be deemed the original.

In this connection, it should be noted that
although Section 16.61, Stats., does provide
for the reproduction of public records by
microfilm, it permits the substitution of
microfilm records for the original only where
the records of a state agency are involved.

The procedure for this is found in Section
16.61(6), Stats. However, since VTAE
districts are not state agencies but
quasi-municipalities, this section
does not apply to them.

By comparison the Legislature has failed to
authorize VTAE districts to substitute
photographically reproduced records
for the original records.

Since the Legislature specifically has
conferred power on certain local units of
government and the state to maintain records
on microfilm, but has not specifically
conferred such power on VTAE districts.

  "it is evidence of legislative intent
   not to permit the exercise of the power."

State ex rel. Harris v. Larson,
64 Wis.2d 521, 527
219 N.W.2d 335 (1974).

Thus a VTAE district may not maintain
records on microfilm.

BCL JWC
 
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